DPP v Fox [2009] VSC 189

3 You were living at the boarding house, were unemployed, and were indulging in polysubstance abuse. You had been the eldest of eight siblings and had grown up in the Oakleigh area. You have had one marriage, numerous relationships, and a number of children, as recorded in Dr Lester Walton's report of 22 December 2008 (Exhibit 1) at pp 2-3. You had had a chequered employment history. You had a considerable number of prior convictions - 37 convictions sustained on 10 occasions before the courts from 1982 to 2004 - but most were for driving offences, dishonesty offences, drink and drug offences, and for low-level violence. You had been sentenced for imprisonment on three separate occasions, once of which was suspended. One offence was particularly serious and nasty - armed robbery in company, of defenceless women in an Oakleigh bank in 1989 and theft thereof (Exhibit A on the plea) -for which you were sentenced to an effective term of 5 years 3 months' imprisonment with a minimum term of 2 years and 9 months, a merciful sentence in my view. At the time of the murder you had been residing at the boarding house for some three weeks and your life was at a low point.

4 The deceased, Mr Lachhman Singh, was born in India and had moved to Australia some 26 years ago. He married and had one son, now 23 years of age. A divorce occurred and Mr Singh remarried, by which marriage was a son who is now 12 years of age. That marriage also ended in divorce. Mr Singh had worked in the Dandenong area as an anodiser. He suffered an assault in the public street involving hospitalisation, ceased work, and had been residing at the boarding house for some six weeks before his death. He occupied room 27 and you occupied room 4. He was not a paedophile.

5 You had heard rumours at the boarding house, and had formed your own view, that Mr Singh was a paedophile. On Saturday 22 September 2007 as usual, you had been abusing alcohol and drugs. That afternoon you had been aggressive towards the deceased in company. You then went to Mr Singh's room late on that day, forced open the locked door, and commenced to torture the deceased with a knife. On the state of the evidence I am unable to find that you brought the knife to Mr Singh's room and I do not so find. However, with a knife, in the room you cut Mr Singh across the face and eyelids, the stomach and the genital area. Numerous defensive wounds to the deceased's hands and arms were discovered at autopsy. You then slit the deceased's throat a number of times, causing his death. You went to the room of a friend, cried, and then went to the shower where you left the knife and your bloodied clothes. Mr Singh, dead, lay where you left him in his room. His body was not discovered. You remained at the boarding house and in the Noble Park area. Late on the Monday afternoon the body of the deceased was discovered. You and another man were returning to the boarding house that evening when you observed numerous police there. You both decamped, fled to NSW, and were arrested on 28 September 2007 by NSW police. Victorian police attended. You made full admissions to police when interviewed, saying (Q.591) that you killed the deceased because he was (in your mistaken belief) a paedophile. You were charged with the murder of Mr Singh.

6 You were extradited to Victoria and after a contested committal hearing ultimately came before this Court on 5 August 2008 when you pleaded not guilty to the count of murder. The matter was set down for trial for November 2008. Prior to empanelment a voir dire was held on 17 November 2008 in which the issue was the voluntariness of your NSW confessions. I heard evidence on the matter and ruled that the confessions were admissible. Then on 19 November 2008 you were rearraigned and you pleaded guilty to the count of murder. The holding of the voir dire was not unjustified or wasteful. In the light of your full and immediate confessions to police in NSW, your prompt plea of guilty following the adverse ruling on the voir dire, and the remorse that I consider you have now come to hold (paragraph 16 below), I consider that you should be given the full benefit of a plea of guilty. I sentence you on that basis.

7 A victim impact statement of Mr Kanwal Singh, son of the deceased, was filed as exhibit 3 on the plea. It is a moving and impressive statement. In it Mr Singh states:

"I am unable to recover anything from my father's death. It has left me feeling empty, violated, scared at some points.....

Me and my father had an up and down relationship due to my parents' divorce. By losing my father I have lost that blood relationship we had, but more I feel violated that someone could come into our lives and destroy any chance of repair of our relationship. Nobody should have the right to take another life".

8 An autopsy was conducted on the body of the deceased at the Coronial Services Centre, Southbank from 9.30am on 25 September 2007 by Dr K White, pathologist. Mr Singh had been the subject of multiple knife injuries, principally slicing - to the head, face and eyelids, the neck, the abdomen, the groin and the pubic area including a number of wounds to the base of the penis and one to the scrotum. There were multiple defensive injuries to the arms and hands of the deceased. His body exhibited significant bruising and abrasions, consistent with blunt force injury. Most of the knife injuries were inflicted ante mortem. It is possible that the knife injuries to the abdomen, scrotum and base of the penis were inflicted post mortem (autopsy report of Dr White pp.23-24, point 3, D.208-209). The cause of death was deep incised wounds to the neck which severed vital structures including complete transection of the trachea, right carotid artery and right internal jugular vein. The deceased was a heavy drinker. At autopsy a blood sample was taken which revealed an alcohol level of 0.32%.

9 This offence is in the most serious category of murder. The only mitigating element of this offence is that it was not the subject of planning by you or of premeditation.

10 There are six significant mitigating factors which apply to the proper sentence to be imposed on you, Mr Fox.

11 First, as I have said, is your plea of guilty to the crime, and for which you are to be given full credit.

12 Second, and combined with the first, is that you made full and prompt admissions upon your arrest in NSW.

13 Third is your own personal history and its psychiatric and emotional effects upon you. You were sexually abused when you were nine years of age, which experience has had a profound effect upon you. Sadly, one of your sons was sexually abused and committed suicide. This also had severe impact upon you: Dr Walton's report 22 December 2008, exhibit 1; Waverley Gazette 3 May 1972, exhibit 3; Victoria Police modus operandi Report 8 May 1972, exhibit 4. Your consequential loathing of paedophiles was the direct cause of this offence[1].

14 Fourth, you have over an extended period suffered bipolar affective disorder. You are on psychiatric medication in custody, notably sodium valproate (report of 17 April 2009 of Dr F Blaher, St Vincent's Correctional Health Service, exhibit 5). You will continue to have this treatment in custody. Your psychiatric condition will add to the burden upon you of custody.

15 Fifth, you physically suffer from significant hernia weakness, having undergone surgical repair for your left inguinal hernia in September 2008 and are under medical investigation for a right inguinal hernia with operative treatment likely. These conditions cause you considerable pain, exacerbated by your situation of being in custody, and will add to the burden upon you of custody.

16 Sixth, I consider that you have remorse for the crime. Initially you certainly did not, as is revealed by the terms and tenor of your police interview in NSW on 28 September 2007. I also note Dr Lester Walton's report (exhibit 1) of 22 December 2008 referring to his interview of you on 19 December 2008 and your apparent lack of remorse therein. However, perhaps by the effluxion of time together with the painstaking judicial process, I consider that you have come to have remorse for your crime. Indeed, I consider that your slowness in coming to remorse does not bespeak moral turpitude as much as it bespeaks the depth of your own experiences (of you and your son) of abuse. As I said to your counsel Mr Desmond in discussion on the plea, despite this terrible crime I consider there is good in you, Mr Fox, and significant potential for rehabilitation.

17 Something further needs to be said about the third and fourth factors above stated.

18 Your own personal history, significant though it is, is no justification for taking the life of Mr Singh. He had never done anything to you. You were acting on rumour and loathing. You were totally wrong in believing Mr Singh was a paedophile. You could have gone to the police with your belief. You did not. The law sets its face, and rightly so, against vigilante conduct, especially murder. One of the raft of reasons the law rejects vigilante conduct is to avoid mistakes. The purpose of painstaking criminal investigation and trial is to get it right. Finally, if proved to be so, paedophiles should be dealt with according to law, not barbarism.

19 As to your psychiatric condition, important though it is for sentence upon general principle, it was not causal of the crime. With characteristic astuteness, the psychiatrist Dr Lester Walton, in his second report, which I had requested, of 7 April 2009 (exhibit 7) stated:

"As best I can judge, this man's major psychiatric illness, bipolar affective disorder, likely has no relevance specifically to the style of the wounding of the deceased. Mr Fox was not caught up in an active phase of his illness at the time of the killing nor the preceding mutilation."

In Dr Walton's primary report, of 22 December 2008 (exhibit 1) Dr Walton stated under the heading "Opinion" (in paragraph 2 page 5) that he can "find no convincing evidence that (Mr Fox) was deprived of the capacity to meaningfully distinguish right from wrong at the time of the incident" and (in paragraph 5 page 5)

"Because this man is suffering from a major mental disorder, that would seem to raise Verdins issues for consideration in relation to sentencing. It could not be stated that this man's mental disorder has made any major or central contribution to the offending. The fact that Mr Fox does have a mental disorder does have relevance to disposition and he had already attracted the attention of prison-based psychiatrists, with the reintroduction of mood-stabilising medication. Minimally adequate treatment can be provided in a custodial context."

21 Although, as I have said, your prior conviction for armed robbery was particularly nasty, those events occurred over 21 years ago. That substantial time lapse significantly lessens its potential impact on your present sentence. Your other offences although numerous are not in the worst category. In the end I have concluded that your plea of guilty effectively deflects the impact on this sentence of your prior convictions.

22 I consider that under well-known principle (Tsiaras[2] and Verdins[3]) the legal culpability for your offence is substantial - because your bipolar affective disorder was not connected with the offence of murder - but that by reason of your psychiatric condition the application of the principle of general deterrence should be moderated.

23 I do not regard your abuse of alcohol or of illicit drugs as diminishing your responsibility for the offence or of mitigating the sentence property to be imposed upon you.

24 I express my thanks to Mr Kissane for the prosecution and Mr Desmond for the accused for the substantial assistance each has provided the Court. Mr Desmond in particular put everything that could properly be put on your behalf, Mr Fox.

25 You have served 598 days in pre-sentence detention. Pursuant to s 18(4) Sentencing Act 1991 I declare that period of 598 days as already served under the sentence I impose and I so certify.

26 I state pursuant to s 6AAA Sentencing Act 1991 that, on account of your plea of guilty, I have reduced the sentence otherwise I would impose upon you by the period of five years as to both the head sentence and the minimum term.

27 Mr Fox, for the murder of Mr Lachhman Singh I sentence you to 20 years' imprisonment. I direct that you serve a minimum period before eligibility for parole of 15 years' imprisonment.

[1] As to relevance of abuse, see generally The Queen v AWF [2001] VSCA 172 and the observation of Ormiston JA at [6]:

"In general it is not so much the cause that is important: rather it is the consequences which flow from those earlier events. If there is evidence to link them to a condition or state of mind which is a proper basis for viewing the criminality of an offender as less serious and for saying that specific or general deterrence (or both) should have a small part to play in the overall sentencing process, then that condition will have a greater relevance and significance".

[2] [1996] VicRp 26; [1996] 1 VR 398.

[3] [2007] VSCA 102; (2007) 16 VR 269.